Mays v. Forbes , 11 Tex. 284 ( 1854 )

Lipscomb, J.

In this case, motion was made by the counsel for the defendant, to dismiss the case, on several grounds, unnecessary to be stated. Before the motion was acted on, the plaintiffs moved for, and obtained an order for a certiorari to bring up a perfect record. It appears that the writ of certiorari was issued from this Court; but it has not been returned ; and instead of the return of the certiorari, the plaintiffs have brought into Court and filed what purports to be a record in the case, with the seal of the Court upon the binding confining the sheets containing the record, together. This seal was wanting on the first record, which omission was one of the grounds of the motion to dismiss the suit at the last Term. The record not being returned with the certiorari, it cannot be regarded as of any authenticity whatever. No such mode of bringing a more perfect record into this Court, is known to the law. The first record filed, deriving no aid from the last, must be dismissed, for want of what has been regarded, under the rules of this Court, as material, the want of the seal of the Court below, across the tie, binding the sheets together. On this ground, the motion to dismiss is sustained.

If, however, the second transcript could be received, the motion to dismiss would be sustained on another ground, as neither the first nor second transcript furnish evidence that the citation to the defendant in error was issued and served in accordance with the requirements of the statute. (See Art. 793, Dig.) It is explicit in directing, that on the filing of the petition for the writ of error, “ the Clerk shall issue a cita- “ tion, directed to the Sheriff of the county where the oppo- “ site party is alleged to reside, together with a copy of the “ petition, commanding him to cite such party to be and ap- “ pear before the Supreme Court at its next Term, after the “ citation is issued, and defend the said writ, which citation “ and copy of petition shall be served by the Sheriff to whom “ it is directed, and shall be returned to the Court from which “ it issued.” The citation in this case is directed to the Sheriff of Calhoun county, and it is served and returned by the Coronor of the county of Calhoun. In some cases, the Coronor by our statute, is authorized to act as Sheriff, but not in a case like the present. Article 185, Digest, makes it the duty of each Coronor to execute and return all process, of whatever nature the same may be, where the Sheriff is a party, and in all cases where just exceptions can be taken to the Sheriff or his deputies, or where there is no Sheriff. We are not informed that any of these exceptions existed. If there was any objection to the Sheriff, or if there had been no Sheriff, such fact should have been suggested in the petition for a writ of error.

This case has no claim to be continued longer on our docket, for the purpose of placing the record properly before us. The judgment was rendered on the 9th of April, A. D. 1850; the petition for a writ of error was not filed until the 1st of April, A. D., 1852, the time elapsed almost sufficient to constitute the statutory bar to its issuance, and the record not yet before us in a way that it can be revised. The case is ordered to be dismissed from the docket.

Writ of error dismissed.